THOMAS ALIAS THOMMACHAN Vs. STATE

JUDGEMENT

(1.) Appellants 1 and 2 were accused 1 and 2 at the trial of Sessions Case 2 of 1959 against them and the third accused before the learned Additional Sessions Judge at Kottayam. Accused 1 and 3 are the sons of the second accused. The first accused has been convicted under S.302, IPC and has been sentenced to be hanged subject to confirmation by this court. Accordingly the proceedings have been submitted to this court under S.374 Crl. P.C. He has also been convicted under S.324 IPC and sentenced to undergo rigorous imprisonment for one month. The second accused has been convicted under S.324 IPC and has been sentenced to undergo rigorous imprisonment for two months. The third accused has been acquitted.

(2.) The three accused were living in a building marked B in the sketch Ext. P11, situated in a property called Thengumpalli. On the west of the property is a river called Llalam thodu marked M in Ext. P11. This was fordable at the point L. From this point there is a pathway which, as marked in Ext. P11, cuts across Thengumpalli and lies west to east. The deceased Kunjomman, his widow PW 2, his son PW 1 and his daughters PWs 3 and 10 were living about 3/4th of a furlong to the east of Thengumpalli. Their only access to the river was through this pathway. On account of obstruction to the use of the pathway PW 10 had preferred a complaint on the first of August 1958, to the 1st class Magistrate at Meenachil. In it she alleged that while she was passing along the pathway she was abused and pelted with stones by them, that they were going about armed and were bent upon causing obstruction to her and the members of her household. She, therefore, prayed for necessary action being taken against the accused to ensure their safety. Ext. P10 was forwarded to the Police and by Ext. P10 (a), the Head Constable reported on the 26th August 1958 that the members of the two families were at loggerheads with one another, but that there was only exchange of words between them on that day and the accused had been warned not to obstruct PW 10 and others in using the pathway. No further action was taken upon Ext. P10.

(3.) On the morning of the 21st September 1958, which was a Sunday, Kunjomman and PW 1 went to the Karur Church which is situated to the west of the river cutting across Thengumpalli. They were returning from church by about 8-30 A. M. along the same pathway. When they came to the south of the building C marked in Ext. P11, which was then under construction, accused 2 and 3 came out of their house and called aloud "]nSn-t¨mSm Aht\" as if to the first accused who was tapping rubber near a mango tree marked K. The first accused dropped the tapping knife MO 7 and took a stone as if to pelt Kunjomman with it. Seeing this, Kunjomman and PW 1 turned back and ran westwards followed by the first accused who scored a hit on Kunjommans head with the stone. The second accused threw a chopper MO 1 to the first who picked it up, overtook Kunjomman and inflicted three cuts on his head, the first one across the nose, the second on his right cheek and the third across the back of his head. Kunjomman fell on the ground and died immediately. While inflicting the second cut on the right cheek, PW 1 tried to save his father and in that process received the cut partly on his left hand. After Kunjomman had fallen the first accused turned on PW 1 with the chopper and there ensued a tussle between them in which accused 2 and 3 also participated. In the course of this struggle they fell at the point B on the western side of the kayyala marked in Ext. P11. The second accused then cut PW 1 on the right leg and on the right elbow joint with a chopper. PWs 2 and 3, who were on the eastern garden and had advanced towards the mango tree when Kunjomman was cut, hurried towards PW 1. The third accused then cut PW 2 with the chopper thrice. The first accused then inflicted two injuries on PW 3 on her left wrist and her left forearm with M. O.1. By this time people were collecting and the three accused left the scene. This is the case for the prosecution.